THE REAL REASON AND ACHILLES HEEL FOR REPARATIONS LAWSUITS

If I were to suggest that members of the Jewish faith living in the United States should consider suing the nation of Egypt because of the benefit it has derived for centuries from long-ago enslavement of Jews, readers would rightly think I’d lost my mind. 

Yet today here comes Richard North Patterson—lawyer, bestselling author, political functionary and elite Washingtonian—to remind us that 

the stark reality is that America’s grappling with race is far from done. As the distinguished conservative commentator Charles Krauthammer wrote: “The African-American case is unique. There is nothing to compare with centuries of state-sponsored slavery followed by a century of state sponsored discrimination.” Contemporary Americans, [Patterson says Krauthammer] asserted, were still bound by this dynamic: “Even when guiltless we remain collectively responsible for our nation’s past.” 

The emphasis is mine, highlighting the obeisance paid to the gods of statism and collectivism by Patterson and, sadly, the late Charles Krauthammer (who should have known better.) Even if we’re guiltless, we’re responsible! How’s that for a moral, religious, constitutional and legal principle?

Increasingly, Patterson has more and more company cavorting in the reparations follies. Patterson reports that presidential-candidate Senator Cory Booker and Representative Sheila Jackson Lee “have now called for a commission on reparations to, as Booker puts it, ‘bring together the best minds to study the issue and propose solutions that will finally begin to right the economic scales of past times’.” 

 Memo to Mr. Booker and Ms Lee: the “best minds” already know today’s reparations enterprise is merely another Jackson-Sharpton-type guilt-scam designed and effectuated to snare unnecessarily guilty whites and other Americans who had nothing to do with slavery. (For the record: Nor did I!)

Some brief history will remind Booker, Lee and their allies of what happened last time the reparations scheme was tried, and look at the law will inform them why any reparations case is doomed.

Back in the day, reparations lawsuits were brought in at least four United States federal courts. Non-slaves sued non-slaveholders because of the latter’s alleged benefit from Seventeenth, Eighteenth, and Nineteenth Century slavery.

At the time, the Washington Post reported that “descendants of black American slaves in New York and San Francisco filed lawsuits against several major corporations . . . contending that the companies should pay reparations for reaping profits on the backs of people who worked without pay. * * * The complainants argue that corporations benefited from an immoral institution and conspired to continue profiting from slavery even after the practice was outlawed. They seek unspecified damages.”

The cultural and political absurdity, not to mention the immorality, of those reparations lawsuits—let alone the whole idea of reparations—has been exposed with unanswerable logic by David Horowitz in his Uncivil Wars: The Controversy Over Reparations For Slavery (Encounter Books), and there is no need to repeat here Mr. Horowitz’s devastating deconstruction of the entire reparations enterprise.

What has not been addressed, however, is the fact that reparation lawsuits, are legally, baseless. They are frivolous in the extreme. As such, anyone who brings such cases risks serious consequences.

Rule 11 of the Federal Rules of Civil Procedure (and comparable provisions in state law) establishes certain standards that lawyers and their clients must comply with whenever they bring a lawsuit. Rule 11 provides for sanctions if those standards are violated.

The statutory language aimed at baseless lawsuits is clear-cut: “By presenting to the court [any] paper, an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,  

1.      that [the paper] is not being presented for any improper purpose . . . . [Rule 11(b)(1)]; and

2.      the claims . . . and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law [Rule 11(b)(2)]; and

3.      the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery . . . . [Rule 11(b)(3)].” 

In sum, Section (1) requires a proper motive, Section (2) requires some basis in law, and Section (3) requires present or reasonably anticipated factual support.

If any one of these provisions are violated, the culpable lawyers, law firms, and/or parties can be sanctioned by the court. Subject to certain limitations, the sanctions can be monetary in order “to deter repetition of such conduct by others similarly situated.” And the monetary sanctions can be substantial.

As a predicate to the following analysis it needs to be understood that the purpose of civil litigation is to resolve actual disputes between individuals and/or entities arising out of conduct deemed by the law to violate recognized rights (whether those rights have been created by common law, or through the enactment of statutes). Proof of damages is essential, except in actions to declare the rights of parties (e.g., who owns a disputed painting).

Most observers know what civil litigation is supposed to accomplish, so let’s zero in on the motive for reparations litigation. For proof that reparations litigation is not properly motivated, we need only read a March 31, 2002 article in The New York Times by Harvard Law School Professor Charles J. Ogletree, Jr., co-chairman of the then so-called Reparations Coordinating Committee. Among other things, Ogletree wrote that:

Bringing the government into [reparations] litigation will . . . generate a public debate on slavery and the role its legacy continues to play in our society. The opportunity to use expert witnesses and conduct extensive discovery, to get facts and documentation, makes the courtroom an ideal venue for this debate. A full and deep conversation on slavery and its legacy has never taken place in America; reparations litigation will show what slavery meant, how it was profitable and how it has continued to affect the opportunities of millions of black Americans. Litigation is required to promote this discussion because political accountability has not been forthcoming. (My emphasis.)

Translation: Because Mr. Ogletree’s political agenda was unsuccessful, because his naked purpose was to subvert the proper function of civil litigation in order to stir up a national debate about slavery and reparations, he and his political bedfellows shifted their activism from an openly political forum—where ever since 1989, the late Representative John Conyers introduced a bill to study slavery reparations, only to see it die each time—to the venue of the federal courts.

Moreover, and more important, America had a very costly “full and deep conversation on slavery.”

It is called the Civil War.

Ogletree’s motive was a clear violation of Rule 11(b)(1).

As for Rule 11(b)(2)’s requirement that the complaint in a lawsuit have some basis in law, let’s be clear about the statute’s intention. The only relevant question is: Can what the plaintiff is complaining about be legally redressed? In other words, a jilted woman cannot sue her ex-boyfriend for jilting her because the law does not recognize ungentlemanly conduct as legally actionable conduct. On this score, then, reparations litigation complaints fail miserably—in more ways than there is space here to deal with. I’ll spell out just four major deficiencies:

o    There are no legitimate plaintiffs. Reparations lawsuits have been bought and threatened today by people who were not themselves slaves, and thus have no grievances. Indeed, in one case, the plaintiffs were described as descendants of slaves. Even if they could prove they were descendants (which is well-nigh impossible), they would have no legal standing to complain about what happened to others—even their relatives—centuries ago.

o    There is no cognizable legal claim. Apart from the undeniable fact— as reprehensible as it was— that pre-Civil War slavery was a legal institution, not since the inception of this country has there been what we lawyers call a recognized civil “cause of action” (e.g. trespass, breach of contract, assault and battery) for slavery, or for anything even remotely connected with that obscene practice.

o    There are no legitimate defendants. Back in the day, the reparations enterprise sued railroads, banks, insurance companies, and the like. Putting aside whether these entities or their predecessors even existed while slavery existed, there never was, nor can there ever be, the requisite causal connection between the acts of those entities (e.g., lending money to slaveholding plantations) and today’s plaintiffs (e.g., alleged descendants of slaves).

o    There are no provable damages. If the concept of legal causality has any meaning, today’s reparations plaintiffs could not prove they suffered any damages from the conduct of companies over a century ago, let alone from whomever would be the named defendants.

Given these fatal flaws in reparations litigation complaints generally, it is not necessary to examine other problems those cases would suffer from even if they survived predictable motions to dismiss them—notably, defenses such as the legality of slavery, statutes of limitations, and the constitutionality of retroactive liability. Clearly, Rule 11(b)(2) would be violated.

Finally, Rule 11(b)(3), which is directly connected to Rule 11(b)(2), requires factual support for a complaint’s allegations. Accordingly, there could not be a shred of factual support that:

o    Any potential reparations litigation plaintiff would have the requisite personal stake in the outcome of such a case.

o    Anything legally actionable was done.

o    Any would-be defendant did anything—actionable or not—to any plaintiff                             
Any reparations litigation plaintiff could have suffered any damages.

 Even if the plaintiffs, the defendants, and the cause of action requirements of a nonfrivolous complaint were satisfied, no case would survive the expired statutes of limitations after the passing of centuries.

Rule 11(b)(3), like the other two sections, would be violated.

It has to be emphasized that there is much more at stake concerning reparations lawsuits than safeguarding the integrity of our civil justice system. It is important for us to prevent race hustlers like Jackson, Sharpton, and some of the current democrat presidential candidates from enlisting the judicial process in a campaign of extortion, one that has already infected our political and economic system. At stake, as well, is the integrity of our federal judges. They must recognize reparations litigation for what it is and reject its insidious attempt to induce, and capitalize on, undeserved collective guilt.

In the Civil War and its aftermath and in the wounds that continue to divide Americans today, our Nation in many ways—not often fair to those of us who are innocent—has paid many times over the reparations the race hustlers then wanted, and their successors want today: Extracting through moral extortion from innocent Americans through dubious legislation and baseless lawsuits undeserved money and other entitlements.

It is time that the likes of Jackson, Sharpton, Sanders, Booker, Lee and the countless others who have jumped on the statist-collectivist reparations bandwagon be told by our legislators, courts, and individual Americans that enough is enough. That we the innocent reject the pernicious idea that “even when guiltless we remain collectively responsible for our nation’s past.”